R v J.G., 2023 SKCA 92

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3622 Citation: R v J.G. , 2023 SKCA 92 Date: 2023-08-10 Between: J.G. Appellant And His Majesty the King Respondent Before: Leurer, Tholl and McCreary JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr.

Justice Leurer The Honourable Madam Justice McCreary On appeal from: 2022 SKQB 110 , Regina Appeal heard: May 9, 2023 Counsel: Bruce Campbell for the Appellant Kelly Kaip for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] J.G. was convicted of sexually assaulting K.C.: R v J.G ., 2022 SKQB 110 [ Trial Decision ].

He appeals his conviction, asserting that the trial judge erred by ignoring or failing to appreciate relevant evidence, failing to recognize the significance of inconsistencies in K.C.’s evidence, applying a different level of scrutiny to his evidence as compared to that of K.C., and rendering an unreasonable verdict. [ 2 ] For the reasons that follow, the appeal should be allowed, the conviction set aside, and a new trial ordered. II. BACKGROUND [ 3 ] K.C. was 15 years old at the time of the events. J.G. was 21 years old.

On approximately May 2, 2017, after sharing a mickey of vodka, K.C. and a friend went to a bar, despite being underage. There, they interacted with J.G. and some other people. K.C. and J.G. had never met before that evening. K.C. had one drink at the bar and played some pool before the group left, bought some alcohol, and went to a house to continue socializing. At the end of the evening, J.G. had vaginal and anal intercourse with K.C. on a couch in the basement.

K.C. reported the incident to the police, and J.G. was charged with sexual assault ( s. 271 of the Criminal Code ) and sexual interference ( s. 151 of the Criminal Code ). [ 4 ] J.G. admitted to having sexual intercourse with K.C. but asserted that it was consensual and that he believed she was 19 years old. III. TRIAL DECISION [ 5 ] The Crown called four witnesses at the trial. They consisted of K.C., J.S. (who lived in the house where the incident occurred), and two RCMP officers. A video-recorded statement provided by K.C. to the RCMP was tendered pursuant to s. 715.1 of the Criminal Code .

The video recording and a transcription of it were the only exhibits filed. J.G. testified in his own defence and called one additional witness, R.P., who had also been present at the house. [ 6 ] There were several issues at trial. All revolved around the matter of K.C.’s consent. The first emerged because of the undisputed fact that K.C. was under 16 years of age and that J.G. was more than 5 years older than her.

The question arose whether the Crown had proven “beyond a reasonable doubt that the accused believed (or was willfully blind) that the complainant was underage or was reckless as to her underage status” ( Trial Decision at para 44, citing R v Carbone , 2020 ONCA 394 at paras 128–129 , 388 CCC (3d) 499). This issue needed to be addressed because of the application of s. 150.1 of the Criminal Code : Consent no defence

150.1(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271 , 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. … Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than five years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. … Mistake of age

(4) It is not a defence to a charge under

section 151 or 152, subsection 160(3) or 173(2), or

section 271 , 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. [ 7 ] Second, K.C. had been drinking on that evening and, during her testimony, described herself as having been 10 out of 10 on a scale of intoxication. As such, capacity to consent was an issue.

Section 273.1 of the Criminal Code was relevant: No consent obtained 273.1(2) For the purpose of subsection (1), no consent is obtained if … (a.1) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1) … . [ 8 ] Lastly, the interrelated issues of whether K.C. had consented to sexual intercourse with J.G. and the communication of that consent were in question, engaging the following sections of the Criminal Code : Meaning of consent 273.1(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in question takes place. … Where belief in consent not a defence 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [ 9 ] The trial judge started the Trial Decision by describing the elements of each of the two offences and providing a brief

summary of K.C. and J.G.’s testimony. He set out the three consent issues and began his analysis by reminding himself of the burden of proof faced by the Crown as articulated in R v W.(D.) , 1991 SCR 742, and several other cases that had interpreted it. [ 10 ] Turning to the first issue, mistaken belief in age, the trial judge reproduced the relevant portions of s. 150.1 of the Criminal

Code and noted that the 5-year age difference exception did not apply because the gap in ages was larger than that. The relevant materialevidence was the fact that J.G. and K.C. did not know each other, K.C. testified that J.G. did not know her age, and J.G. testified that hebelieved K.C. was 19 because he met her in the bar.

Applying s. 150.1(4), R v W.G., 2021 ONCA 578, 405 CCC (3d) 162, leave to appealto SCC refused , and Carbone, the trial judge found that the Crown had not proven beyond a reasonable doubt that J.G.did not take all reasonable steps to ascertain K.C.’s age or that J.G. believed that she was underage or that he was wilfully blind or recklessregarding her underage status.

This aspect of the Trial Decision is not challenged by the Crown in this appeal. [11] Moving on to incapacity to consent resulting from intoxication, the trial judge set out s. 273.1 of the Criminal Code anddescribed the test applied in the following cases: R v G.F., 2021 SCC 20, 404 CCC (3d) 1; R v G.J.R., 2021 ONCA 926; R v K.G.P., 2021MBCA 79, leave to appeal to SCC refused, ; and R v Myles, 2021 ONSC 3808, aff’d 2023 ONCA 90. Applying thistest, he found that the Crown had not proven beyond a reasonable doubt that K.C. was incapacitated by alcohol to the point that she did nothave the capacity to consent.

This finding is also not challenged by the Crown on appeal. [12] Lastly, the trial judge turned to the issue of whether the Crown had proven beyond a reasonable doubt that K.C. had notconsented to the sexual activity with J.G. He first examined the law related to the actus reus, relying on R v Barton, 2019 SCC 33, [2019]2 SCR 579, and R v Ewanchuk, (SCC), [1999] 1 SCR 330, and several other cases. The trial judge then set out the lawregarding mens rea and an accused’s belief in communicated consent, referencing s. 273.2 of the Criminal Code and Barton.

Neither partytakes issue with the trial judge’s recitation of the applicable law. [13] The trial judge then applied the law of consent and communicated consent to the circumstances before him. In doing so, herejected J.G.’s evidence that K.C. had consented to the sexual acts. The trial judge set out his analysis over the next several pages,recounted some of the evidence, made findings of fact, and determined that J.G.’s testimony did not raise a reasonable doubt. After furtheranalysis, he determined that the Crown had proven beyond a reasonable doubt that K.C. had not subjectively consented to the sexualactivity.

He further concluded that K.C. did not communicate her consent and that J.G. did not have an honest but mistaken belief incommunicated consent. [14] J.G. was convicted of sexual assault (s. 271) and sexual interference (s. 151). The sexual interference conviction was judiciallystayed in accordance with the principles in R v Kienapple, (SCC), [1975] 1 SCR 729. J.G. was sentenced to 32 months ofincarceration. He has not appealed his sentence. IV. ISSUES [15] The grounds of appeal raised by J.G. are set out in his factum: A.

The learned Trial judge failed to appreciate relevant evidence which raised a reasonable doubt as to the guilt of the appellant and moreparticularly disregarded or failed to consider evidence which would’ve directed to the issue of innocence. B. The learned trial failed to recognize the significance of the inconsistencies of complainant’s evidence. He did not properly orcompletely apply the doctrine of reasonable doubt when assessing the complainant’s credibility. He applied a different level of scrutiny tothe complainant’s evidence than to the accused’s evidence. C.

The learned judge erred in law in failing to properly and completely apply the doctrine of proof beyond a reasonable doubt to theevidence.

And the verdict is unreasonable and cannot be supported by the evidence within the meaning of section 686(1) of the CriminalCode. [16] Although described somewhat generically as relating to an “issue of innocence”, J.G. and the Crown approach their argumentsin this appeal on the basis that the first ground of appeal is intended to challenge the trial judge’s failure to consider evidence that relatedto whether K.C. had communicated her actual consent to sexual intercourse with J.G. I have determined that a new trial should be orderedbased on this ground, so it is unnecessary to address the other two. V.

ANALYSIS [17] A misapprehension of evidence or a “failure by a trial judge to consider evidence relevant to the ultimate issue is an error oflaw” (R v Necroche, 2018 SKCA 24 at para 38). As discussed by Doherty J.A. in R v Morrissey (1995), (ON CA), 80OAC 161 (CA), a “misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake asto the substance of the evidence, or a failure to give proper effect to evidence” (emphasis added, at para 83).

Justice Doherty further notedthat “[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in thereasoning process resulting in a conviction then … the accused’s conviction is not based exclusively on the evidence and is not a ‘true’verdict” (at para 93). Later, in the same paragraph, he added the following: “If an appellant can demonstrate that the conviction dependson a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim ofa miscarriage of justice.

This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction”. [18] In R v Lohrer, 2004 SCC 80 at paras 1–3, [2004] 3 SCR 732, Binnie J., speaking for a unanimous Supreme Court, agreed withDoherty J.A.’s observations.

He also emphasized that Morrissey “describes a stringent standard” and that the misapprehension of evidence“must go to the substance rather than to the detail” (at para 4): see also R v Paproski, 2021 SKCA 65 at para 26; R v Thalheimer, 2022SKCA 25 at para 45, 411 CCC (3d) 208; and R v W.D.M., 2022 SKCA 64 at paras 54–56, [2022] 9 WWR 606, leave to appeal to SCCrefused, . [19] In this case, J.G. asserts that the trial judge ignored crucial testimony from J.S. pertaining to whether K.C. had consented tosexual intercourse and had communicated that consent.

As I earlier noted, J.S. lived at the house where the incident occurred. On the nightin question, J.S., who was sober during the events, was socializing with the people who had come to her house from the bar, including

K.C. and J.G. Around midnight, she asked the four members of the group who were in her bedroom with her – K.C., K.C.’s friend, J.G., and R.P. – to leave the room because she had school the next morning and wanted to sleep. The four persons went to an adjacent room, which had a couch and a bed. At some later point, J.S. came out of her bedroom. She testified that she observed the following: [Evidence-in-chief testimony] Q After they left the bedroom, did you go back to see them at all? A I did. Q Okay. And can you tell me about that?

A I turned on the light and [R.P.] and [K.C.’s friend] were making out and so were [J.G] and [K.C.]. Q Okay. And you saw them making out? A Yes. Q And where were [J.G.] and [K.C.] making out? A Sit -- on the couch. Q Okay. In that -- in that room next to your bedroom? A Yes. Q Do you remember what the couch looked like? A Black leather. Q Black leather. How -- and -- and so did you interrupt them? A I just -- I didn’t mean to. I turned on the light and saw what [was] happening and turned it off and went back to my room and blast the music. Q Okay. Did anyone react when you turned the light on?

A [R.P.] and [K.C.’s friend] stopped, but [J.G.] and [K.C.] kept making out. Q They kept making out? A M-hm. Q Okay. And you said you went to blast music? How come? A So I wouldn’t hear whatever was going on -- Q Okay. So -- A -- in the next room. Q -- so things were getting a little -- A Yeah. Q -- is it -- things were heating up? A Yes. … [Cross-examination testimony] Q … And then, I take it, did you go out to tell them to kind of keep quiet? Is that why you actually left your room? A Yeah.

Q And that’s when you turn on a light and -- and, if I’m not mistaken, [K.C. and J.G.] were making noises that associated with sex -- A Yeah. Q -- I take it? A Yes. Q They were moaning or making those type of -- A I -- actually, I -- I don’t know about that, but -- yeah. Sure. Q Yeah. You could hear them? And when you turned on a light, you’re saying [R.P.] and [K.C.’s friend] reacted, but [K.C.] and [J.G.] just kept -- A Kept -- Q -- kept -- A -- making out. Yeah. Q And she was kissing him -- A M-hm. Q -- touching him? Yeah. Okay.

And, again, it says in your statement, you made a -- you were, like, and it says “disgusted noise”. You -- you didn’t like what you saw, I take it? A Yeah. Q You were -- you were upset? A M-hm. Q Okay. And -- but anyways, you didn’t think anything of it other than they were making out? A Yes. Q All right. And as I -- and I just want to make this clear, you said: (as read) [K.C.] was on top of him and he was -- she was kissing him.

A Yes. [ 20 ] K.C. testified regarding the portions of the incident that coincided in time with what J.S. observed and in response to her recorded police interview: [Statement to police (8 May 2017) – video-recorded statement tendered under s. 715.1 of the Criminal Code ] Q: So do you recall having sexual intercourse with [J.G.]? A: Yeah.

Q: Okay. And I know this is going to be tough but it’s important that I understand what happened here okay? What position were you in, what position was he in, during the intercourse?

A: I’m pretty sure he was sitting down and on the couch and like he had me like on like top of him, with like my knees to the side and, and like all I remember is like him constantly telling me to Shh, cause I’m pretty sure I was crying and kinda screaming and I’m pretty sure he like he had like my mouth on his shoulder and like just whispering in my ear telling me to Shh like Stop you gotta be quiet. … Q: Okay, You don’t know if he, did it, did the, it start and stop, did anything like that happen? Like were you having sex and then did he ever leave and come back and have sex again or anything like that happen?

A: Mmm I don’t think he left, and if he left then I think that’s when I, I left, I left, to ask [R.P.] for help. … Q: Okay, and then when, at what point did he undress? A: Mm after he undressed me, yeah because I think I was like laying there trying to figure out what the hell was going on. I was just laying there completely in my own world thinking what, what is happening. Q: Mhmm. A: And he, that’s when he was taking off his clothes. Q: Okay so once he took his clothes off then what happened? A: That’s when he got on top of me and I was laying on that couch. Q: Okay.

A: But like he came on top of me and then he like grabbed my legs and like wrapped them around him, but like that couch was broken and so I don’t, and so I think that’s when he like grabbed me and he sat down and put me on top of him. Q: Okay, and then that’s when, is that when you got into the position where your knees were off? A: Yeah. Q: Were you knees off to, one on each side like you’re straddling him … A: Yeah. Q: … or are both knees on one side, or do you remember? A: It was like both my knees on each side of him. Q: Okay, okay. So at that point is that when he … A: Yeah. Q: … Started having sex with you?

A: Yeah. [Cross-examination responses at trial] Q All right. And so, you’re in [J.S.’s] room. The next thing you remember is -- the next memory you have is being on top of [J.G.], is that right? A Yeah. Yes. Q All right. You don’t know how you got there? A No, I have no idea how I got into that part of the basement. … Q Okay. Now, I’m also going to talk -- [J.S.] -- I’ll just come right out and say it, [J.S.] says she saw you and [J.G.] making out.

You were kissing him, you were on top of him, you were making out in the same room, they’re on the bed, and yeah, like -- and then, I just -- she went back to her room after seeing you and [J.G.]. What do you say to that? A That I don’t recall, and I don’t think there’s any consent of a 15 year old who is under the influence. Q M-hm. Okay. I -- I agree. But would you agree with me that it looks like there might have been consent, whether or not you were 15? A There is no consent with someone who is under the influence. … Q And you left [J.S.’s] room at some point; correct? A Apparently.

Q You don’t have any recollection of leaving [J.S.’s] room? A No. Q All right. And then, the next memory, you are -- actually have is basically being on top of [J.G.]. Okay, he was sitting on the couch, and you were on top of him; correct? A Yes. Yeah. Q And you have no idea how that happened? A No. Q All right. And it was when you realized you were on top of him, did you -- did you get off of him at that point? A I -- my face was on his shoulder, and that’s when I came to, and I’m like, thinking to myself, like what -- what is happening.

Like, trying to gather myself together from being one place, and then all of a sudden being in another place. Q M-hm. A And so, I think the -- coming to and where I was, scared the shit out of me. Oh, sorry. Q Right. A Sorry about that. Scared me. And I was in shock. I was in shock of what was happening. Q Okay. A And, yes, I do remember getting off of him, and I think that’s when, like the change of position happened, of where he could -- he put me on the ledge of that chair, with my back on -- on the arm of that chair, and I have fallen through the crack, is -- that’s what I recall.

… Q Okay. And I’ll go over -- I know I’ve asked you this before, but as you know, I want to confront you with what other people have said, and one of them of course is [J.S.], and she has given a statement which says, [K.C.] was on top of him kissing, making out with [J.G.]. Could that have happened? A It could. Q Could it? Are you saying, yes? A Yeah, that could have happened. Q And then she says, she turned on the light, and [R.P.] and [your friend] stopped, but [you] and [J.G.] just continued making out. That also could have happened?

A I don’t recall that. [ 21 ] In his testimony, J.G. stated the following regarding this aspect of the events: Q All right. What do you recall? A Drinking in [J.S.’s] room and then being -- and then going into the laundry room, or the other room. Q The other room? A Yeah. Q Okay. And who all was in the other room, as far as you know? A Me, [K.C.’s friend], [R.P.], and -- and [K.C.] … Q And what happened? A We started making out. Q Who’s “we”? A Me and [K.C.], I believe. … Q All right. And so what do you remember about you and [K.C.]?

A That she took me into the room, into the thing, and then we made out on the couch. And -- and that’s about it. And then we started, you know, taking off our clothes and -- Q And? A -- and having sex on the couch, I -- Q All right. Do you recall if you had anal sex with her? A No. I don’t recall that -- that at all. Q All right. But you do recall making out with her; right? A Yes. Q Did you force her to have sex with you?

A No. [ 22 ] The trial judge found as follows regarding the sexual activity ( Trial Decision ): [115] I accept that J.G. undressed her and placed her on top of him, with her legs straddling him and that he later pushed her on her back and had vaginal and anal intercourse with her. I accept that J.G. placed her in a position where she was bent over backwards over the side of the couch and I accept that she felt pain in her vagina and anus. I accept her testimony that he “hurt me a lot”. I also accept that she did not know who J.G. was at that time and that she felt “grossed out”. … [118] In

summary, with respect to proof of the actus reus , I am satisfied beyond a reasonable doubt that K.C. subjectively did not consent to the sexual activity with J.G. … [126] In these circumstances, the Crown has proven beyond a reasonable doubt that K.C. did not communicate her consent and J.G. did not have an honest but mistaken belief in communicated consent. [ 23 ] J.G. argues that the trial judge, in reaching these conclusions, overlooked or ignored J.S.’s evidence regarding what she saw when she left her bedroom.

He submits that J.S.’s observations contradicted portions of K.C.’s testimony, supported his description of consensual sexual relations, and were directly relevant to consent. J.G. contends that the trial judge erred by failing to take this evidence into account when determining whether the Crown had proven an absence of consent beyond a reasonable doubt. [ 24 ] In response, the Crown argues that a trial judge is not required to address every single piece of evidence.

The Crown further asserts that the analysis needs to drill down into what J.S. actually said, and, when that is done, her evidence is not very important. It says that, in any event, there are no relevant contradictions between J.S.’s testimony and that of K.C. The Crown points out that the simple fact that K.C. was kissing J.G. does not prove that she later consented to the sexual intercourse. [ 25 ] In the Trial Decision , J.S.’s testimony of what she observed when she left her bedroom is not mentioned in either the

summary of the evidence or in the analysis. In closing argument, defence counsel repeatedly pressed the significance of J.S.’s evidence to the issue of consent. Despite its importance having been highlighted during submissions at trial, the only reference the trial judge made to J.S.’s evidence is to the fact that K.C. went into J.S.’s bedroom after the sexual activity was over and was crying: see paragraphs 113, 116, and 117 of the Trial Decision . [ 26 ] Here, I find that the trial judge did not simply fail to record J.S.’s observations.

There is nothing in the Trial Decision – read piece by piece or read as a whole – that provides any indication that he considered J.S.’s testimony on what she observed when she exited her bedroom when he made his finding that the Crown had proven the absence of consent beyond a reasonable doubt. Instead, the trial judge overlooked this portion of J.S.’s testimony. The question is whether this omission matters. In my view it does.

[27] It is beyond doubt that K.C. being on top of J.G., kissing him, and “making out” with him does not demonstrate that sheconsented to sexual intercourse. If that were the extent of J.S.’s testimony, a new trial would not be justified. However, J.S.’s testimony,vague and imperfect as it was, might be interpreted as evidence, based on J.S.’s observation, that K.C. was actively participating inconsensual sexual activity with J.G. at the point when J.S. left her bedroom and turned on the light in the adjacent room.

But the trialjudge did not take that aspect of her evidence into account at all. [28] I find that J.S.’s testimony was material because it spoke to the issue of whether the portions of the sexual activity she observedwere consensual. This is relevant not only to the conduct that J.S. observed, but also because it could support J.G.’s description of anongoing sexual encounter between J.G. and K.C. of increasing intensity: all of which, on his telling, was consensual.

Accordingly,although the conduct that J.S. observed was brief, and preceded the other sexual activity, J.S.’s observations were material and had to beaccounted for by the trial judge in his fact-finding. [29] The Crown argues otherwise. It submits that consent to earlier sexual activity does not equate with consent to later sexualactivity. This, of course, is correct as a matter of law. However, the Crown’s legal argument fails to address the fact that the trial judge didnot find that the events unfolded in this way.

Contrary to the argument made by the Crown in its oral submissions in this appeal, the trialjudge did not find that there was some consensual sexual activity that progressed to non-consensual sexual activity. He found that thesexual interactions were part of a continuing sequence of events – including the portion where K.C. was on top of J.G. – all of whichoccurred without K.C.’s consent. The latter conclusion, however, is incongruent with what J.S. described she saw on the couch in theadjacent room. Of course, the trial judge was not required to find the facts were as J.S. described them to be.

However, given thesignificance of J.S.’s evidence to the question of whether K.C. had consented to the activity that J.G. described as the prelude to the laterinstances of sexual intercourse, it was incumbent upon the trial judge to address that evidence and explain how his findings fit with it. Hedid not do this. [30] As noted above, the trial judge only mentioned the testimony of J.S. in three paragraphs of the Trial Decision: paragraphs 113,116, and 117.

It is evident that the trial judge’s reference to her testimony was, however, only to those parts of her testimony thatcorroborated K.C.’s testimony that she had been upset the morning after the alleged assault took place. Most materially, the trial judgeappears to have concluded that J.G.’s trial counsel had conceded that J.S.’s evidence was of almost inconsequential value.

I base this uponthe trial judge’s statement that he “note[d] that J.G. fairly acknowledges that the evidence of J.S. provided a ‘slight bit of corroboration’ tothe testimony of K.C.” (at para 113). [31] However, if the trial judge was intending in this statement to encompass all of J.S.’s testimony, I am satisfied that hemisunderstood the position taken by J.G.’s trial counsel.

In this regard, the trial judge’s reference to an acknowledgment by J.G.’s trialcounsel appears in the following exchange: [TRIAL COUNSEL]: … when I confronted [K.C.] with what [J.S.] said about her being flirtatious and actually seeing her make -- youknow, you were on top of him kissing him. And she gave evidence saying both of them were so -- were really drunk. Now, I would saythat goes to the issue of, if she didn’t have capacity, I don’t know what makes [sic] to say neither did my client. I mean, [J.S.] seemed tothink they were both really into it, although she made it clear that [K.C.] was on top.

Now, I didn’t confront [K.C.] with everything, obviously. I confronted her with what I thought [R.P.] would say, and she -- again, I don’tthink denied that either, that her hand was on his chest and she seemed to be okay. So there is a slight bit of corroboration when – [J.S.]also says She came into my room crying.

When at that time I think J.S. said, Yeah, no, I -- I don’t believe you, but that’s certainly whatshe said. [32] When read in context, it is my view that J.G.’s trial counsel was conceding that J.S.’s evidence that K.C. had been crying wascorroborative of that aspect of the Crown’s case that relied on K.C.’s actions after the sexual activity.

He was not conceding that theevents that J.S. had observed outside her bedroom were only slightly corroborative of his client’s position that the complainant hadconsented to the full range of sexual activity that had occurred. [33] The failure by the trial judge to account for this part of J.S.’s testimony does not end matters. As previously discussed, notevery failure by a trial judge to address evidence justifies appellate intervention. Rather, the evidence must go to the substance of anessential aspect of the trial judge’s decision.

In this case, given the relevance of J.S’s testimony to the assessment of the credibility ofJ.G.’s account, and to the key issue of K.C.’s consent to the entirety of the sexual activity, the error in the matter at hand was significant,and a new trial is required. [34] I wish to be clear that I am not making a finding regarding how J.S.’s observations affect the assessment of the other evidencein this matter. That is a determination to be made at a subsequent trial.

This judgment simply determines that it was an error for the trialjudge to have overlooked or failed to address the portion of J.S.’s testimony where she described what she had seen when she exited herbedroom. [35] I would add one last footnote to all of this. As previously noted, the trial judge determined that, in the proper application ofs. 150.1(4) of the Criminal Code, “it is not enough for the Crown to simply disprove the defence set out in s. 150.1(4)” (Trial Decision atpara 44).

Instead, he concluded, with reference to Carbone, that it was incumbent on the Crown to “prove beyond a reasonable doubt thatthe accused believed (or was willfully blind) that the complainant was underage or was reckless as to her underage status” (at para 44).Neither J.G. nor the Crown questioned this ruling in this appeal. At least one commentator has suggested that Carbone cannot bereconciled with R v Angel, 2019 BCCA 449, 382 CCC (3d) 149, leave to appeal to SCC refused, : see Don Stuart, R vCarbone, Criminal Reports – Comments, 64 CR (7th) 1.

Given the positions of the parties in this appeal, my judgment should not be takenas commenting on this question. VI. CONCLUSION [36] The appeal is allowed. The conviction is set aside, and a new trial is ordered.

“Tholl J.A.” Tholl J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “McCreary J.A.” McCreary J.A.